Hong Kong’s Article 23 bill includes public interest defence for people charged with offences related to state secrets

Disclosure of state secrets allowed when purpose is to reveal government’s performance ‘seriously affected’ or ‘a serious threat’ to public order, safety or health

While journalist groups welcome inclusion of clause, one raises concerns threshold for defence might be too high

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A news report on the bills’ readings is shown on TVs. The bill outlines “specified disclosure” of information as a defence for people charged with unlawful acquisition, possession or disclosure of state secrets. Photo: Jelly Tse

Published: 8:34pm, 8 Mar 2024Updated: 11:56pm, 8 Mar 2024

Hong Kong authorities have included a public interest defence for people charged with offences related to state secrets in a domestic security bill, in response to suggestions raised during the consultation period.

The bill released on Friday morning outlined “specified disclosure” of information as a defence for people charged with unlawful acquisition, possession or disclosure of state secrets.

While journalist groups welcomed the inclusion of the clause, one of them raised concerns that the threshold for the defence might be too high, which could make it difficult to convince a judge the information reported concerned great public interest.

Under the bill, the disclosure of state secrets is allowed when its purpose is to reveal the government’s performance of its functions is “seriously affected” or “a serious threat” to public order, safety or health.

“Having regard to all the circumstances of the case, the public interest served by making the disclosure manifestly outweighs the public interest served by not making the disclosure,” the bill states.

A banner supporting the Article 23 law. When the government first attempted to legislate Article 23 in 2003, the public interest defence was added to the bill as a result of demands raised during the consultation. Photo: Xiaomei Chen

But the defence can only be applied to people who unlawfully acquire, possess or disclose state secrets without the intention of endangering national security.